Please donate to take a French case on donor anonymity to the European Court of Human Rights

L’association PMA : Procréation Médicalement Anonyme (PMA), the French organization of donor conceived persons, calls for donations to take a legal action to the European Court of Human Rights (ECHR) in Strasbourg.

PMA supports the basic, fundamental and universal right to access to one’s origins (to get information about your ancestry, biological parents and siblings). In France, donor conceived persons are without rights: donors have an absolute right to anonymity, it is a crime to reveal the identity of a donor, the donor may not even waive his anonymity out of his own will, and private DNA tests are forbidden (for more information about France see our country report).

Audrey Kermalvezen, a lawyer who specializes in biotechnology and member of PMA, was conceived by a sperm donor in 1979. In 2010, Audrey initiated a legal action in France in 2010 with two requests :

  • getting access to non-identifying data (number of her siblings, medical data, possible death of her genitor)
  • that the French hospital where the sperm donation took place asks her genitor (the sperm donor), provided that he is still alive, if he agrees to reveal his identity.

On 12 November 2015, the Conseil d’Etat, the highest French administrative court, dismissed Audrey’s claim. In its judgment, the court found that the anonymity of sperm donors, as provided by French law, is not incompatible with the European Convention on Human rights, and that the rule of anonymity meets the objective of protecting the donor’s private life.

Audrey and PMA now intend to take her case to the European Court of Human Rights. Such action is only possible every possible legal instrument at national level has been exhausted. The chances of a success are not too bad: The right to know your genetic ancestry is protected by the European Convention on Human Rights as part of the respect for private life in Article 8. In the Godelli case, the ECHR decided that the Italian law on anonymous adoptions violated Article 8 of the Convention because adopted persons did not have access to any information about their mother and birth family that would allow them to trace some of their roots, while ensuring the protection of third-party interests. Also, Italian law did not attempt to find a balance between the competing rights of adopted persons to find out their origins and the mother’s interests in remaining anonymous, but blindly preferred the latter.

The practice of anonymous gamete donations is similar to the Godelli case, as donor offspring cannot obtain any information about the donor, neither identifying nor non-identifying. In addition, donor offspring cannot ask the donor if he or she is willing to waive his or her anonymity. (Read more about the impacts of international law on the practice of donor conception)

A judgment by the ECHR banning absolutely anonymous sperm donations would affect all member states of the European Convention on Human Rights. Additionally to France, Belgium, Spain and the Czech Republic still provide for anonymous donations. A success would be a huge leap forward for all donor conceived persons and their right to know their genetic origins.

To be able to fund the action, PMA and Audrey ask for donations to be able deposit an action before 12 May 2016. Audrey and PMA say that even 5 or 10 Euros would help them, so please support them, if you can. Thank you for your help.

Stichting donorkind starts online campaign to register at DNA databank

Stichting Donorkind, the organization of donor conceived persons from the Netherlands, is starting an online-campaign with two clips. One to call on donors to register at the DNA-databank from Fiom and one doing the same for donor conceived persons.

The English Translation of the spoken text is:
In the 80’s I helped parents with their wish for a child. Then anonymous donorship was normal. Because it was long ago I didn’t think about it any more.  Then I saw a tv-show and realized that it can be very important to know who their donor is.  I decided to give up my anonymity and register at the Fiom DNA-databank.  Untill now there are two matches, two biological daughters. I helped their parents, then why not the children.  Help too, register at Fiom and visit Donorkind on their webpage of facebook.

Inspired by the campaign, a TV network will air a show with a donor and his daughters in January to tell about the good experiences to meet his donor-children. Also, Spoorloos, a dutch TV-show that searches for lost family members, will feature the search of a group of donor conceived half siblings who think their donor (who is also known) fathered up to 200 children.

Donor conception: Yes we can, but maybe we shouldn’t

On the 3rd November Steph, member of donorkinderen Belgium, attended in London the conference “10 years since the end of donor anonymity: have we got it right?”. This is the report she originally wrote for the website of donorkinderen:

In 2005 the government of the United Kingdom decided to implement a change in the law so that humans who are conceived with the genetic material of a third person, get access to basic and fundamental information about themselves: knowledge on their biological parent(s) and siblings. All the speakers at conference agreed unanimously that it was the correct decision to abolish the anonymity of donors.

At first glance, the policy in Britain seems a perfect example that could help Belgium finally modernize but also humanize our policy. They seem to have everything: right to filiation, registry, DNA database, a huge support network, research, better guidance for children, parents and donors, donor families, …

At the conference we looked for the answer on the question ‘have we got it right?’. The answer on this question has many layers. Each speaker tried to answer by sharing the knowledge that was collected over the last 10 years.

We were told how precautious and negative the fertility clinics were when the government decided to change the law. Many of them claimed prophetically that it would end the possibility of intended parents to have children because no donors would agree to donate on the term of being identifiable.

Their fears turned out to be totally unfounded: not only was there an increase in the number of sperm donors, the amount of egg donors has also risen.

Due to the social tendency of single women and lesbian couples wanting to have children, a huge increase on demand took place. Because the demand is lager than the available national supply, 1/3rd of the sperm in the UK is imported. Most of it is imported from American sperm banks (in perspective: for many years Belgium has a decline in the number of donors. 60% of sperm that is used in my country is imported from abroad).

The HFEA (Human Fertility & Embryology Authority) notices an increase in the number of donor offspring that want to know who they descend from. There are also more and more donors that are changing their anonymous status into identifiable (men and women who donated before 2005).

But donor conception is more than just what facts & figures on trends and conducted research. It is an ethical debate, one that human society forgot to have before we started with such treatments.

Dr. Joanna Rose
The person who tried to answer the ethical part of the question was Dr. Jo Rose. Jo is a British donor conceived adult. She was conceived in the 1970s with some anonymous sperm from a sperm bank. When she was 8 years old she was told that she was donor conceived. That meant the realisation of an unknown biological father and potentially hundred half siblings out there.

Jo started her speech with telling us about a her dear friend: Narelle Grech. Narelle, an Australian donor conceived, was looking for her biological father for the half of her life.

The young woman got cancer, but nevertheless continued to search for him. When she almost gave up on life and hope of finding him, the prime minister of Victoria, Australia heard her plea and stepped in. He made it possible for them to get in contact.

From the moment they met there was mutual and true connection. Narelle would only live for 6 weeks after their first meeting. The little time she had left she would spend with him. She passed away gratefully but also with regret because of not having him sooner in her life. A part from the exceptional bound they shared, knowledge of hereditary diseases could have helped her cancer to be detected sooner so she could have lived longer, maybe even not die from it.

Jo then shared her own story: how being donor conceived had had an inevitable impact on her life, identity and family. She told us that when she became an adult she decided to file a lawsuit to challenge the fundamental injustice that has been done to her.

It was a lonely and hard battle which HFEA, the fertility industry, a lot of doctors, ethicists, professors but also parents organizations were hoping that the struggle would wear her down so that she would eventually give up.

Lawsuit
The lawsuit lasted seven long years, as well as half of her savings, when the judge ruled in her favour. The ruling stated that ‘donor offsprings’ access to information about a biological parent goes to the very heart of their identity and make-up as people’ and that ‘an AID child is entitled to establish a picture of his identity as much as anyone else’.

This case led to a change in the law, which made the provision of anonymous donor conception in UK clinics illegal and let to the establishment of the gene library and registry service to address the identity loss and confusion already created.

PhD
In 2009 Jo Rose completed a PhD called ‘A critical analysis of sperm donation practices’. Her PhD gives an independent picture on what took and is taking place, analyses and formulates substantiated conclusions.

Her research shows that donor conception goes against the best interests of the child where the direct implications can be very harmful as well as inevitable. A potential trauma is inflicted, one that can affect a human being’s life and passed on to other generations.

Her conclusions are damning for the current British ‘ progressive ‘ policy:

  • It is in the best interests of a child that it can raised by its biological parents or family. Donor conception generates a direct conflict with this specific interest because it deliberately withholds the child from being raised by both of its biological parents as well denying it the possibility to built a meaningful relationship with them.
  • The right to lineage for donor conceived is endorsed in the law, but not automatically granted nor guaranteed. Parents can conceal its actual origins from the child. If a child is not told, there is a little change it will ever know. That is unfair and unjust. The government has a responsibility to grant the truth about their origins towards the children that were created through fertility treatments with donor gametes.
  • Birth certificates do not reflect the truth about the child origins. Not putting all, incorrect or partly information on it, is a form of forgery.
  • Donor conception comes forward due to the demand of intended parents with a desperate desire of having a child and an industry that makes money out of this. There is a huge conflict of interest due to the fact that the best interest of the child is inevitable undermined by it.
  • The suffering of infertility or incapability to procreate is officially recognised. A huge support network has been established: either independent initiatives or by clinics. Some of those are financially supported by the government. On the other hand the suffering of donor conceived is still not being recognized, nor efforts were made to acknowledge this or actually to do something about it.
  • There are millions of pounds/euro’s/dollars/dineros pumped into the industry: fertility techniques, counselling for parents, aftercare, choices, research … donor conceived in UK are only offered 2,5 hours with a counsellor.
  • In other words: there is money to create donor conceived but when it comes to take any responsability or accountability for the direct consequenses that is being inflicted on them, hands go up in the air.
  • No donor conceived are represented on the Board of the HFEA. Seats are assigned to professors, parents organization and people of the industry.

David vs Goliath
In contrast to the other speakers, Jo was the only one there defending a basic human right and addressing an injustice. She spoke from the heart and was there not because she happened to be working in a business that is linked to donor conception.

Some people in the room found her speech or interventions afterwards too emotional, sometimes a bit aggressive. But most of audience listened and understood the message: she made some good valid points. There were a lot of donor conceived adults, as well as parents, in the room who posed sincere and critical questions, but also expressed their support for Jo.

It is not often that donor conceived are invited to talk at conferences or debates. Often they are organized by the industry or organizations linked to that industry. People have difficulties to hear critical input that could point out the contradictions, conflicts of interests and the actual effect it has (or could have) on human beings that are conceived that way. Most of time they want to hear the ‘happily ever after’ and not ‘the inevitable potential devastating implications’ on the offspring. It would ruin the image that is forced upon us every time a leaflet of a perfect baby is handed over, when treatments must be advertised.

We experience the same thing in Belgium: the industry/clinics rather invite professors linked to the industry to talk about donor conceived offspring, rather then giving them the opportunity to speak for themselves.

It is absurd to notice that those who dare to speak up, or look critically at the policy are being treated poorly. Those who stand up do it most of the time completely for free: in their spare time, or take leave, invest their own money in the belief that a part from the occasional mistreatment, they will be able to make a difference for other donor conceived, donors and parents. It is almost undemocratic that victims without any support from their government must fight this hard not only to address the issues, but simply to be heard.

On my way back home I took the Underground and I came across a poster with a picture of a baby and the slogan “Sometimes nature needs a helping hand. Give yourself the best chance. The Fertility Show.”

-Big sigh – Yes indeed … their show must go on.

But at least I made some really nice friends and allies. Wait until if you discovered what we have in store.

Steph
Stephke.r@pandora.be
@donorkinderen

p.s.: Jo wanted to start her presentation with the song that a German donor conceived, Kevin Staudt, wrote. She wasn’t able to get it played, nevertheless I want to share it with you.

Germany: Federal Court of Justice confirms donor offspring’s right to know their donor

In a landmark decision, The Federal Court of Justice (Bundesgerichtshof), Germany’s highest civil law court, ruled today that donor conceived children have a right to know the identity of their donor.

The judgement is in line with the decisions of regional courts on the rights of donor offspring and with former BGH decisions on the right to information about a person’s ancestry. Anonymous sperm donations were never allowed under German law, as there is a constitutionally protected right to information about a person’s ancestry. However, as there were no clear legal regulations of sperm donation, the practice of doctors developed quite differently. For a detailed analysis of the legal situation in Germany regarding donor conception, read the DOE country report on Germany.

In the current case, the claimants were two donor conceived sisters, born 1997 and 2002 respectively, whose parents sued on their behalf. The regional court of Hanover said that they had the right to know their donor’s identity, but only at the age of 16, applying the age limit provided in the Personal Status Law (Personenstandsgesetz) for adopted persons. This was refused by the Federal Court of Justice, who said that “a minimum age was not necessary” for disclosing a sperm donor’s identity.

Spenderkinder, the German organisation of donor offspring, is pleased that the judgement provides a final clarification that donor offspring have the right to know the identity of their sperm donor. This will make it easier for donor offspring to claim their rights in the future from doctors and clinics. We are also very pleased that the Federal Court of Justice refused the idea of an age limit, as young children may already have an interest in their biological father. However, the questions of data retention and to the basic information of being donor conceived at all (many parents do not tell their children) remains unresolved.

Therefore, Spenderkinder hopes that the decision will send a strong signal to the coalition government to fulfill their promise that they will pass explicit legislation protecting the right of donor offspring. This means not only passing an explicit claim to know the donor’s identity, but also to retain the donor data for an extensive amount of time by entering the donor’s name into the extended birth registry (Geburtenregister) or to at least provide a public registry where every person can demand information of they are donor conceived. Also, donors must be protected from maintenance and inheritance claims.

A letter to the editor of the Economist

DOE has written the following letter to the Economist regarding the article “Nice to gamete you – A solution to the shortage of donors“.

Sir,

I was rather disappointed by your article on the alleged shortage of gamete donors in the UK. You hint that the abolishment of donor anonymity in the UK and “meagre” compensation are responsible for donor shortages, thereby bypassing all possible ethical arguments. Donating gametes is not comparable to providing a mere commodity, or a means of combating an ageing population. It creates human beings, who grow into adults with their own interests and wishes – including, frequently, the wish to know who their genetic parents are. The right to know about your ancestry is protected by the European Convention on Human Rights as well as the UN Convention on the Rights of the Child. These children also have a right to be assured that their parents will only use donor conception, which is a very challenging way to build a family, after careful consideration.

However it should be noted that the number of donors has actually more than doubled despite the decision to prohibit anonymous donations: from 272 in 2005 to 586 in 2013. Research indicates that the main motivation for many donors is altruistic – therefore often neither anonymity nor payment are decisive factors when men choose to become donors. Furthermore British donors are “underused” – i.e. most of them do not create the legal limit of ten families, supposedly because clinics do not want to share gametes with competitors. Consequently a national sperm bank might ensure better use of British donors, and hopefully also find responsible donors who have the future children’s best interests at heart.

Ireland about to ban anonymous sperm donations

The Irish government plans to ban anonymous sperm donation under new draft legislation. The Children and Family Relationships Bill will require clinics and hospitals from early next year to provide details of donors and children to a national donor-conceived person register.

According to Irish Justice Minister Frances Fitzgerald: “The key issue is to enable a child to know his or her identity. As a result anonymous donation will be prohibited,” the justice minister added.

Donor Offspring Europe welcomes the Irish government’s decision to respect and protect the rights of donor conceived persons and hopes that other European countries that still allow anonymous donations will follow.

Donor Offspring Europe is online!

We are proud to announce that our webpage is finally online, although there is still some work left to do. It has been a long way: Our organisations have been in contact with each other for over ten months, presenting our work and discussing the situation of donor conceived persons in our countries.

Now, we are happy to get in contact with the outside world and are looking forward to fulfilling our aims: lobbying for the rights of donor offspring and promoting contact amongst donor offspring. Hopefully, we are going to welcome some more donor conceived organisations during the upcoming years. There are still too many countries within the European Union where our voice is not present yet.